Office of Legal Counsel

by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law

The debate over President Obama’s action on immigration has raised a difficult and enduring issue: the nature and scope of the executive’s prosecutorial, or perhaps more accurately, enforcement discretion. The existence of such discretion is inevitable and, in many circumstances, desirable. Consider the familiar example of the enforcement of speed limits. Anyone who travels the nation’s highways knows that law enforcement officers do not pull over drivers who slightly exceed the posted speed limit. We would expect a driver to be upset to get a ticket for going 56 mph in 55 mph zone. To some extent this practice of ignoring slight violations of speeding laws results from scarce enforcement resources. While a police officer is occupied with issuing a ticket to a speeder, that officer is unable to pull over other speeders. An officer who tickets the hypothetical driver for going 56 mph risks allowing a dangerous speeder, say someone going 90 mph, to evade detection. This risk wouldn’t exist if there were an unlimited number of police officers at the roadside able to take over while one officer pulls over the 56 mph driver. Given the existence of scarce enforcement resources, police officers have concluded that refraining from enforcing speed limits against slight violators actually better promotes the goal of the speed limit – highway safety.

On the other hand, it is easy to see how this discretion might be abused. The power could be used to undermine the force of existing laws and thus, in effect, to repeal or revise those laws. Imagine, for example, the President orders the Social Security Administration to cease processing social security payments because doing so would conserve scarce federal resources. This order would be clearly illegal. It would violate individual rights (for qualified persons to receive the payments) and an affirmative statutory command to the executive branch (to make the payments).

What are we to do when the exercise of discretion does not fall at one of these extremes? This is a truly important issue. At its heart, the issue involves the proper relationship between the executive and legislative branches. The conundrum is expressed in the Constitution’s Take Care Clause (which directs that the President “shall take Care that the Laws be faithfully executed”). This Clause simultaneously imposes a duty on and recognizes power in the President. On the one hand, the Clause forbids the President to refuse to enforce the laws (I do not mean to address the context where statutes conflict with one another or with the Constitution). On the other hand, the idea of “faithful execution” must include some room for the exercise of discretion to determine what course will faithfully execute the laws. This theoretical conundrum has real practical resonance. Conservatives today see the President flouting the recent elections and pursuing a regulatory policy that is not only inconsistent with those results but represents the sort of broad policymaking that one would ordinarily expect to see in a statute, not in unilateral executive action. The President, on this view, is usurping the legislative power. This is not a frivolous concern. Flipping the political valence, consider a future, conservative President taking the position that he or she is clothed with discretion to refrain from prosecuting violations of certain federal firearms laws or environmental protections. Many of those expressing approval of President Obama’s order would be outraged at the usurpation of a President who unilaterally re-writes the law of environmental protection or firearms safety.

The Obama administration is bending very little to accommodate the mounting calls for the release of legal reasoning for targeted killings of U.S. citizens abroad. So far the president has only agreed to provide legal documents regarding the use of drones and targeted killings to a couple of congressional intelligence committees.

The white paper leaked earlier this week, apparently providing a summary of a document crafted by a few attorneys in the Department of Justice’s Office of Legal Counsel (OLC) advanced wobbly -- some have said shoddy -- arguments that the administration’s counterterrorism policy, especially its use of drones, does not subvert constitutional principles. The white paper, in part, concluded that the president could order a targeted killing if the suspected terrorist posed an “imminent threat to the country,” capture would prove “infeasible,’ and that the operation “would be conducted in a manner consistent with applicable law of war principles.”

Constitutional law experts, like Georgetown’s David Cole blasted the white paper, concluding it allows for the federal government to “kill its own citizens in secret.” The drone war, he explained has significantly reduced “disincentives to killing.

Leahy and Grassley are not terribly impressed with the white paper either, saying in their letter, that it “was not an adequate substitute for the underlying legal analysis that we believed had been prepared by the Department’s [DOJ] Office of Legal Counsel (OLC) ….”

The senators also note that the legal arguments in the white paper centered on core constitutional concerns, such as the Fourth Amendment (bars government from “unreasonable searches and seizures” and the Fifth Amendment (the Amendment’s Due Process Clause provides or is supposed to provide for a fair hearing before government can “deprive a person of life, liberty, or property.") The Senate Judiciary Committee also has “direct oversight jurisdiction over the Department, including OLC.”

For a president who came to power promising a more transparent government – Obama had been a sharp critic of the prior administration’s proclivity for secrecy – it seems that the legal analysis apparently calling for an outlandish extension of executive power should be made public for all, not just a few senators.

by Stephen Vladeck, Professor of Law and Associate Dean for Scholarship, Washington College of Law, American University

The more that I grapple with the so-called “white paper” prepared by the Department of Justice to provide at least some overview of the legal rationale behind the targeted killing of U.S. citizen terrorism suspects such as Anwar al-Awlaki, the more I’m reminded of Justice Robert Jackson’s dissenting opinion in the Mezei case -- decided in March 1953 at the height of the Cold War. As Jackson there explained:

Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices.

Although Jackson lost in Mezei, his understanding of due process eventually became hard-wired into the Supreme Court’s due process jurisprudence, culminating in a number of decisions in the 1970s in which the Court recognized that the heart of the Due Process Clause was an individual’s entitlement to a hearing before a neutral decision maker.

The increasingly disturbing use of Reaper and Predator drones to kill suspected terrorists, and too often civilians alongside them, was apparently given the green light by some DOJ lawyers in the Office of Legal Counsel (OLC). But that’s not for certain since the Obama administration rarely talks about the drone war.

But a leaked white paper apparently crafted by lawyers in the OLC may be a summary of a more expansive document – the ACLU is suing to find out. The paper, however, as The New York Times and others have quickly noted advances convoluted and radical arguments for an outrageous expansion of executive power.

Constitutional law scholar and Georgetown University law school professor David Cole, in a piece for NYR blog explores, “how we made killing easy.” And Cole notes by the way that the Obama administration is battling “tooth and nail” the ACLU’s effort to force the release of the entire legal document.

The white paper argues that an informed, high-ranking government official can order the killing of a U.S. citizen integral to or associated with Al-Qaeda abroad if the person poses an “imminent threat of violent attack” against the country, the person is unlikely to be captured and that the killing operation would be conducted in accordance with laws governing war.

The brief paper tosses aside due process in a strained effort to justify executive branch power, with essentially no oversight, to order the killing of terrorist suspects, even U.S. citizens.

Federal courts have avoided legal challenges against President George W. Bush’s construction of counterterrorism policies that included extraordinary rendition where terrorism suspects were secretly shipped to countries well-known for employing torture. The Bush and Obama administrations urged the federal courts to dismiss legal challenges to extraordinary rendition and secret detention sites arguing that they would expose “state secrets.”

But an exhaustive report from the Open Society Foundations’ Justice Initiative reveals the policies marketed as a way to protect Americans from terrorism, trampled human rights and produced fatally flawed information. Rendition, in particular, “stripped people of their most basic rights, facilitated gruesome forms of torture, at time captured the wrong people, and debased the United States’ human rights reputation world-wide,” write OSF’s Jonathan Horowitz and Stacy Cammarano about the report.

The federal government has refused to acknowledge participation in rendition and according to Horowitz and Cammarano more than 50 other governments were also involved though have refused to admit it. The initiative’s report details the brutality and senselessness of secret prisons and rendition.

In "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition," Amrit Singh, a senior legal officer of OSF’s Justice Initiative, states that “more than a decade after September 11, there is no doubt that high-ranking administration officials bear responsibility for authorizing human rights violations associated with secret detention and extraordinary rendition, and the impunity that they have enjoyed to date remains a matter of significant concern.”

But because the government has used the so-called state-secrets privilege to scuttle lawsuits challenging the constitutionality of its counterterrorism work, it has until now been difficult to discern the scope of rendition, its number of victims and other government involvement.

In the report’s executive summary, it is noted that “based on credible public sources and information provided by reputable human rights organizations, this report is the most comprehensive catalogue of the treatment of 136 individuals reportedly subjected to these operations. There may be many more such individuals, but the total number will remain unknown until the United States and its partners make the information publicly available.”